Judges: DIANE K. KIESLING
Agency: Department of Environmental Protection
Latest Update: Apr. 20, 1989
Summary: The issue is whether the Petitioner, Olan B. Ward, is entitled to a special activity license to use mechanical harvesting devices on his oyster leases.Agency cannot add conditions precedent to issuance of special activity license via policy where not found in statute or rule.
88-5990STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OLAN B. WARD, )
)
Petitioner, )
)
vs. ) CASE NO. 88-5990
) DEPARTMENT OF NATURAL RESOURCES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on February 15, 1989, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: Frank J. Santry
Attorney at Law
Granger, Santry, Mitchell & Heath, P.A.
Post Office Box 14129 (32317)
Tallahassee, FL 32308
For Respondent: Harold A. McLean
Deputy General Counsel Department of Natural Resources
3900 Commonwealth Boulevard
Suite 1003
Tallahassee, FL 32399 STATEMENT OF THE ISSUES
The issue is whether the Petitioner, Olan B. Ward, is entitled to a special activity license to use mechanical harvesting devices on his oyster leases.
BACKGROUND AND PROCEDURAL MATTERS
By its Final Order dated September 28, 1988, the Department of Natural Resources (DNR) denied Petitioner's application for a special activity license to use mechanical harvesting devices on his oyster leases. The grounds for the denial were as follows:
The Department has found that Lease numbers 525 and 609 appear to be in violation of the lease agreements and the statutory provisions applicable to the leases for failure to maintain the required level of
cultivation, and are therefore subject to revocation by the Department.
Because the status of Lease Numbers
525 and 609 is currently in question, issuance of a special activity license which would allow mechanical harvesting on those leases would not be proper. It is therefore ORDERED that the application for a
special activity license to authorize the use of mechanical harvesting implements on Lease Numbers 525 and 609 is hereby DENIED until such time as the status of the leases has been determined.
(Emphasis supplied).
This proceeding does not involve any action by the DNR to revoke or otherwise penalize Petitioner or Petitioner's leases for any violation of the lease agreements or applicable statutes. In fact, DNR stipulated that no such action has been brought by it.
Petitioner presented no testimony and had two exhibits admitted in evidence. Respondent, DNR, attempted to present the testimony of Bill Porter, but an objection to the testimony was sustained. DNR proffered the testimony of Mr. Porter.
The transcript of the proceedings was never filed, despite the indication that it would be ordered and filed. The parties filed a Notice of Agreement to Modify Time for Filing Proposed Recommended Orders on March 13, 1989, wherein the parties agreed that Proposed Recommended Orders would be filed no later than April 14, 1989. Despite this agreement, neither party timely filed a Proposed Recommended Order or an appropriate motion to further extend the time for filing same. Hence none have been considered.
FINDINGS OF FACT
The parties stipulated and agreed to the operative facts in their Pre- Hearing Stipulation and those agreed-on facts are adopted herein as Findings of Fact 1-26.
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute.
Respondent denied Petitioner's requested permit in this case because the status of his leases was currently in question for possible failure to maintain the allegedly required level of cultivation.
Respondent applied the provisions of Rule 46-27.0092 F.A.C. (1988) to Petitioner's request for a permit, which rule in fact was not adopted until October 1, 1986, and the pertinent provisions of which did not exist in fact until the rule was amended on July 7, 1988.
Rule 46-27.0092 F.A.C. (1988) cites as its specific authority four provisions of Florida statute which did not exist when Petitioner's oyster leases were acquired by contract with the State of Florida.
Rule 46-27.0092 F.A.C. (1988) implements laws which did not exist at the time Petitioner acquired his contract interest in these leases.
The Department denied Petitioner's request for a permit in reliance on Section 370.06(4), Fla. Stat. (1987), a statute which did not exist at the time Petitioner acquired his interest in these oyster leases by contract.
A report by Dr. Charles Rockwood and others commissioned by the Department of Natural Resources of F.S.U. found that "The local contention that dredging [for oysters in Apalachicola Bay] would be ecologically harmful to the Apalachicola oyster population given the relatively soft and muddy bottom, it would cause excess siltation and the oysters would smother and die, is a conclusion not supported by ecological information available to the project researchers."
The Marine Fisheries Commission 15 years later arrived at the same conclusion stated in #7. "We do not believe there would be any environmental problem associated with the use of dredges."
In Louisiana dredges are allowed to a maximum of 7 Ft. and up to 6 per vessel. Ron Ducas from Louisiana, one of the top shellfish biologist in the southeast, said that the use of dredges does not cause any environmental damage or [un]necessary [sic] damage to the oyster.
The findings noted in #7, 8 and 9 were submitted by Mr. Nelson of the DNR and on behalf of Respondent to the governor and cabinet during the Marine Fisheries Commission agenda of the cabinet meeting on June 14, 1988.
It was noted in a memorandum from the Office of the Governor to Sally Monroe from Billy Buzzett regarding Apalachicola Bay Oyster Dredging dated July 13, 1988, that the owner of lease numbers 525 and 609 appeared to be in compliance with the requirements of his leases and they were validly held leases from the State of Florida.
Most of the currently leased [Apalachicola) bay bottom is not productive because of lack of oyster habitat.
Annually, Apalachicola Bay is filled with oyster spawn (spat). The spat would naturally attach to oyster beds of oyster shell and culch if such beds were created where the bottom is now only mud.
The owners of leases have the right to create oyster habitat on their leases and to hardest the oysters that may grow thereon.
The cost of depositing oyster shell and culch materials on the mud bottom in adequate quantities to create a suitable habitat for spat is about
$5,000.00 per acre.
In recent years, approximately 90 percent of the oysters processed in Franklin County by shucking and canning have come from outside Florida, and only about 10 percent from Florida.
The supply of oysters from outside of Florida is unstable largely due to water quality degradation in other states, as well as the loss of oyster habitat to development.
The use of dredges could allow the holders of leases to harvest oysters from the leasehold more quickly and less expensively. The savings in money could then be used to create more oyster habitat.
Except for potential illegal use of dredges [on public bars], misuse of dredges on lease holds (scooping of all oyster bar materials, without redeposit of the shell and culch), and fracture of thin shelled oysters on lease holds, there is no evidence that oyster dredges will cause biological or water quality problems in Apalachicola Bay.
Those permitted to use dredges on private leases would have the economic incentive to use the dredges in a manner that does not destroy their financial investment in the leasehold.
The foregoing facts represented by #l2 through 20, were all positions advanced by Respondent and the Florida Marine Fisheries Commission to defend the validity of Rule 46-27.0092 and were conclusively found by the State of Florida, Division of Administrative Hearings in Franklin County, Seafood Workers Association, Royce Watson and Leroy Hall, Petitioners v. Department of Natural Resources, and Florida Marine Fisheries Commission, Respondents, in the State of Florida, Division of Administrative Hearings, Case NO. 87-4438R, 10 FALR 2190 (March 31, 1988)
An oyster lease is, among other things, an interest in land.
Petitioner is the owner of Oyster Lease Nos. 525 and 609 which were issued pursuant to Chapter 370.16(16)(b), Fla. Stat. (1953).
The terms of the leases in question are perpetual and convey interest in parcels located in Apalachicola Bay in Franklin County, Florida.
Petitioner applied for a permit to use implements or appliances on his leases on June 30, 1988. Petitioner issued its final order of denial on September 28, 1988.
Respondent has not commenced any proceeding to revoke Petitioner's oyster leases.
Additionally, the parties stipulated to the facts set forth as Findings of Fact 27-29 in their Stipulation filed February 9, 1989.
Petitioner is the lessee of Oyster Leases Nos. 525 and 609, which constitute leased bedding ground.
Petitioner has agreed to furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as he may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law. The attached form of bond [attached to the Stipulation] is acceptable to and approved by the parties for the above-stated purpose.
The only conditions precedent to the issuance of a permit to a lessee to use on leased bedding ground any implements or appliances as he may desire are: 1) that the applicant for the permit be a lessee of an oyster lease, and
2) that he furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any
implements or appliances as the lessee may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 370.16(15)(b), Florida Statutes, states:
Lessees of bedding grounds shall have
the right to use in such bedding grounds any implements or appliances that they may desire. The division shall require that such lessees procure special activity licenses pursuant to s. 370.06 to use such implements and shall require of the lessees that they furnish a bond payable to the Governor of the State of Florida, to be approved by the division, in the sum of $3,000, that such implements or appliances shall not be used on the natural oyster reefs contrary to law.
When such implements or appliances are used exclusively on private propagating or bedding grounds, no charge shall be made for the license...
Section 370.06(4), Florida Statutes, relates to special activity licenses and states:
Any person who seeks to use special gear
or equipment in harvesting saltwater species must purchase a special activity license as specified by law to engage in such activities. The department may prescribe by rule special terms, conditions, and restrictions for any special activity license.
There is no disagreement that Section 370.16(15)(b) contains only two conditions precedent to the issuance of a special activity license to use mechanical harvesting implements: 1) the applicant must be a leaseholder and 2) the applicant must post the required bond. There is also no contest that the Petitioner has met both of these conditions. On its face, it would appear that the Petitioner is entitled to the license. However, DNR argues that the last sentence of Section 370.06(4) authorizes it to apply another condition, namely: No special activity license may issue to any leaseholder during the pendency of an investigation by the department which is designed to discover whether the leaseholder has engaged in required cultivation activities.
Such a condition has not been enacted as a rule and Section 370.06(4) refers only to the department's authority to impose additional conditions if it does so by rule. Having enacted no such rule, DNR instead argues that it may apply this new condition as emerging incipient policy. What DNR fails to recognize is that the burden of proof is on the agency to explicate and justify its policy in a formal hearing. DNR totally failed to carry this burden. Hence
there is no need to address the question of whether DNR is authorized to impose new conditions on the issuance of special activity licenses by application of incipient policy instead of a rule and there is no need to address whether imposition of new conditions to the leases is an impairment of contract.
Finally, it is noted that Section 370.16(4)(d), Florida Statutes, authorizes the division to revoke such leases when the division gathers evidence which conclusively shows a lack of effective cultivation. It would therefore appear that DNR has a remedy available to it. It can bring an action to revoke the leases and if it is successful, the applicant for a special activity license would no longer meet the condition precedent of being a leaseholder. In this case however DNR has put the cart before the horse.
It is concluded that Olan B. Ward has satisfied all statutory conditions on the issuance of a special activity license to use mechanical harvesting implements on his oyster leases and he is entitled to issuance of the license.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order
and therein grant the application of Olan B. Ward for a special activity license
to use mechanical harvesting implements on Oyster Leases No. 525 and 609.
DONE and ENTERED this 20th day of April, 1989, in Tallahassee, Florida.
DIANE K. KIESLING
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th
day of April, 1989.
COPIES FURNISHED:
Harold A. McLean Deputy General Counsel
Department of Natural Resources 3900 Commonwealth Boulevard
Suite 1003
Tallahassee, FL 32399
Frank J. Santry Attorney at Law
Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129 (32317)
Tallahassee, FL 32308
Tom Gardner Executive Director
Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Docket for Case No: 88-005990
Orders for Case No: 88-005990
| Issue Date |
Document |
Summary |
|
Apr. 20, 1989 |
Recommended Order
|
Agency cannot add conditions precedent to issuance of special activity license via policy where not found in statute or rule.
|
